Of Models of Liability

Tuesday, August 24th, 2010 at
6:20 pm

I am informed, over and over, as it turns out about “strict liability.” Liability laws in this country, for whatever reason, irk me. More below the fold.

Once upon a time I raced bikes (I may again some day … as I’ve made the necessary arrangements to commute again … which really really helps to get the miles in my legs). In bike racing liability is modeled on what might be termed the “extreme no-fault” model. We race. If there is a crash, no fault or blame is assessed. Everyone just fixes their own stuff (stuff in this regard being skin, bones, and bikes). If somebody commits egregious faults they get yelled at. If dangerous racing is observed (a thing I’ve not seen) … the race officials will sanction them and soon they won’t be racing anymore. But the official are pretty lenient about this. Many of them have raced or coached before and know that racers push themselves and their equipment hard.

Many states have no-fault liability laws on the road. This means, I am told, that there is no determination of who is at fault in an accident. Instead the insurance companies use rubrics other than fault to divvy up and determine how the bills are paid. This is somewhat similar to the above situation except that the financial settlement is far more entangled than the “each fix your own stuff” model.

Medicine and much of the rest of the legal world (e.g., strict liability) moves to the other extreme. This goes under the model that if somebody is hurt, property is damaged, or whatever then somebody is at fault. And as a consequence that fault must be determined and that person at fault must pay. Now, today in comments the remark regarding malpractice as follows:

Malpractice is not strict liability. Strict liability attaches to the action which, because of its nature, makes you liable for any damages caused by it even if you ‘did everything right’. Malpractice falls under negligance which requires demonstrating basically that you didn’t do ‘everything right’. Malpractice is a subset of negligance based liability that covers professional activities (doctors, lawyers, accountants etc.)

This is interesting in theory, but has a distinct problem. Malpractice suits and claims (and payments) are clearly correlated with risk of operation. Yet those who do the risky and highly demanding services are by the nature of what they do and who they are (the highly skilled specialists), less likely to be negligent. They are however less likely to be successful. This is were the dominant model of “if something bad happens” those with big pockets should pay for it. As an aside, I’d note that our legal system is supposed to be a trial by a jury of our peers, but that those in the medical industry are not permitted to serve on a malpractice jury. The jury may be a peer of the patient, but the doctors and medical industry is getting a raw deal in that none of their peers are ever on the jury. Small wonder that “there but by the grace of God go I” is a common motive for assigning damages when the case data does not warrant the same. But … I digress. The point is that Medical malpractice cleaves more closely to a strict liability model, in which if any damn thing goes wrong then someone should pay.

Here’s the thing. My natural inclination is to the bike race model of liability. For example, I don’t think malpractice should have to just prove that you didn’t do “everything right” but that instead you didn’t do anything actively wrong. A baseball batter doing everything right hits about .300. A pitcher doing everything right has a non-zero ERA. Much of medicine is similar, that is doing everything right can lead to bad results. Until and unless medical malpractice begins to follow a line where negligence in practice lines up with malpractice awards then any corrections need to be made in that direction.

Whether or not there is vast legal precedent for strict liability or not, it remains in my view, immoral. Unless the damage was intentional or due to clear negligence, then the moral thing to do is to “take care of your own stuff.”